Tuesday, January 3, 2012

"The Guardian refrain that Jewish communities across the green line (including in “East” Jerusalem) represent a clear violation of international law is repeated so many times that even those who don’t possess antipathy towards Israel could be forgiven for uncritically accepting this as fact.Indeed, Sherwood’s latest piece, “Israel and Palestinian negotiators meet for first time in a year“, Jan. 2, contains this characteristic throw away line about the “settlements”:

The Palestinians argue that there can be no meaningful talks while Israel continues expanding its settlements in the West Bank, which are illegal under international law.

Of course, Sherwood, as with the countless other Guardian reports alleging the “illegality” of such settlements, doesn’t bother citing a source for such an international adjudication, as no such determination has ever been reached or definitively codified.What Palestinians, and their advocates at the Guardian, are likely referring to is the 1949 Fourth Geneva Convention, the first international agreement designed specifically to protect civilians during wartime.They specifically charge that the settlements violate Article 49(6), which states: “The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies.”To settlement opponents, the word “transfer” in Article 49(6) connotes that any transfer of the occupying power’s civilian population, voluntary or involuntary, is prohibited. However, the first paragraph of Article 49 reads: “Individual or massforcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Unquestionably, any forcible transfer of populations is illegal. But what about voluntary movements?According to theInternational Committee of the Red Cross, Article 49 relates to situations where populations are coerced into being transferred. There is nothing to link such circumstances to Israel’s settlement policy.Historically, over 40 million people were subjected to forced migration, evacuation, displacement, and expulsion, including 15 million Germans, 5 million Soviet citizens, and millions of Poles, Ukrainians and Hungarians. The vast numbers of people affected and the aims behind such population transfers have no relation to Israeli policy.International lawyer Prof. Eugene V. Rostow, a former dean of Yale Law School and U.S. Undersecretary of State,stated in 1990:

[T]he Convention prohibits many of the inhumane practices of the Nazis and the Soviet Union during and before the Second World War – the mass transfer of people into and out of occupied territories for purposes of extermination, slave labor or colonization, for example….The Jewish settlers in the West Bank are most emphatically volunteers. They have not been “deported” or “transferred” to the area by the Government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population it is the goal of the Geneva Convention to prevent.

Ambassador Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal who was later involved in the drafting of the Fourth Geneva Convention, is on record as stating that the convention:

…was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.

Similarly, international lawyer Prof. Julius Stone, in referring to the absurdity of considering Israeli settlements as a violation of Article 49(6),stated:

Irony would…be pushed to the absurdity of claiming that Article 49(6), designed to prevent repetition of Nazi-type genocidal policies of rendering Nazi metropolitan territories judenrein, has now come to mean that…the West Bank…must be made judenrein and must be so maintained, if necessary by the use of force by the government of Israel against its own inhabitants. Common sense as well as correct historical and functional context excludes so tyrannical a reading of Article 49(6.)

Jews have lived in Judea and Samaria—the West Bank—since ancient times. The only time Jews have been prohibited from living in the territories in recent decades was during Jordan’s rule from 1948 to 1967.So, characterizing any Jewish presence across the green line as illegal would seem to ipso facto endorse Jordan’s illegal ethnic cleansing of Jewish communities from these lands following the armistice agreement of 1949. As David M. Phillipsnoted:

Concluding that Israeli settlements violate Article 49(6) also overlooks the Jewish communities that existed before the creation of the state in areas occupied by today’s Israeli settlements, for example, in Hebron and the Etzion block outside Jerusalem. These Jewish communities were destroyed by Arab armies, militias, and rioters, and, as in the case of Hebron, the community’s population was slaughtered. Is it sensible to interpret Article 49 to bar the reconstitution of Jewish communities that were destroyed through aggression and slaughter? If so, the international law of occupation runs the risk of freezing one occupier’s conduct in place, no matter how unlawful.

While reasonable people can of course disagree with Israeli settlement policy – in the context of efforts to one day reach a final status agreement with the Palestinians – lazily asserting that such settlements are “illegal” has no basis in international law, and certainly no basis in morality."

11 comments:

"The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies"

Additionally, there are provisions in the Geneva Conventions and Hague Regulations that prohibit appropriation of land by a belligerent occupier except in the case of absolute military necessity.

The UN Charter (Article 2) prohibits the acquisition of territory by the use or threat offorce.

"The universality of the opinion that the settlements are in violation of Article 49(6) is measured in part by Security Council Resolution 446 (March 22, 1979), which stated the settlements had “no legal validity.” The United States also recognizes the violation, which was set forth by the Department of State Legal Advisor, Herbert J. Hansell, on April 21, 1978, when he concluded that:

“On the basis of the available information, the civilian settlements in the territories occupied by Israel do not appear to be consistent with these limits on Israel’s authority as belligerent occupant in that they do not seem intended to be of limited duration or established to provide orderly government of the territories and, though some may serve incidental security purposes, they do not appear to be required to meet military needs during the occupation.… The language and history of the provision [Article 49(6)] lead to the conclusion that transfers of a belligerent occupant’s civilian population into occupied territory are broadly proscribed as beyond the scope of interim military administration.”

The opinion went on to say,

“The Israeli civilian settlements thus appear to constitute a transfer of ‘parts of its own civilian population into the territory it occupies’…While Israel may undertake, in the occupied territories, actions necessary to meet its military needs and to provide for orderly government during the occupation, for the reasons indicated above the establishment of the civilian settlements in those territories is inconsistent with international law.”

This opinion has never been revised or revoked.

Even the Israeli Government, when it initially looked at the legality of the settlements shortly after the end of the Six Day War and before the settlers became a powerful constituency in Israeli politics, concluded in a legal opinion on September 18, 1967 of Theodor Meron, Legal Counsel of the Foreign Ministry, “that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

Finally, all 15 justices of the International Court of Justice, including American Judge Thomas Buergenthal (a Holocaust survivor), who was the sole dissenter in the 2004 “Wall” Decision, declared the settlements are illegal under international law. In his declaration, Judge Buergenthal stated:

“Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies. It provides that ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6.”

Cut and Paste FAIL Anonymous keyboard lawyerQuote all of Article 49Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.-The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.-The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.-The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.-The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.http://www.icrc.org/ihl.nsf/WebART/380-600056Changes the context doesn’t it

“The UN Charter (Article 2) prohibits the acquisition of territory by the use or threat of force.”Er what?http://en.wikipedia.org/wiki/United_Nations_Charter#Article_2

Funny you don’t mention the ICJ was an advisory judgement outside their jurisdiction and mentioning Buergenthal is just cheap pandering.

UNSC 446 - Chapter 6 - so what.

Hague CONVENTIONSECTION IIIMILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATEArt. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army.The occupation extends only to the territory where such authority has been established and can be exercised.http://www.icrc.org/ihl.nsf/full/195So not Area A or B only Area C

You ignore the relevance of "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." It is clear that Israel has been doing exactly that.

"Article 2

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Clearly, that prohibits the acquisition of territory by war.

The ICJ judgement was far from outside its jurisdiction, despite that Israel refuses to recognise it.

446"1. Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

2. Strongly deplores the failure of Israel to abide by Security Council resolutions 237 (1967) of 14 June 1967, 252 (1968) of 21 May 1968 and 298 (1971) of 25 September 1971 and the consensus statement by the President of the Security Council on 11 November 1976 2/ and General Assembly resolutions 2253 (ES-V) and 2254 (ES-V) of 4 and 14 July 1967, 32/5 of 28 October 1977 and 33/113 of 18 December 1978;

3. Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories." So no legal validity to the squatter's camps, and Israel must remove those squatters and not alter the characteristics of the West Bank. That is "what?"

Areas A and B are permitted to be under the control of the PA. That control is in the gift of Israel, and it is, consequently, Israel that has factual overall control. It would be farcical to suggest that Israel has not "established and exercised" control of areas A and B, or that PA control is under anything other than the oversight of Israel which could (and would if it wanted to do) reimpose that control.

You also ignore that the one and only body of significance that has looked at the legality of the West Bank squatter's camps and found them legitimate is Israel, and even that opinion is a reversal of what it found in 1967.

Your argument is circular UNSC 446 relies on a wildly distorted, untested interpretation of Article 49. Also the ICJs “advisory ruling” was OUTSIDE its jurisdiction see article 36. Also you mention the Jewish judge but not the Jordanian and Egyptian?http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0

Are Israel's Settlements Legal? Eugene W. Rostow (an author of UNSC 242)“Article 49 provides that the occupying power "shall not deport or transfer part of its own civilian population into the territory it occupies. But the Jewish settlers in the West Bank are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory "carried out on the territory of another." The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the jordan River. Even if the Convention could be construed to prevent settlements during the period of occupation, however, it could do no more than suspend, not terminate, the rights conferred by the Mandate. Those rights can be ended only by the establishment and recognition of a new state or the incorporation of the territories into an old one. “http://israelvisit.co.il/BehindTheNews/Archives/Feb-22-06.htmSecurity Council Resolution 242 According to its Draftershttp://www.camera.org/index.asp?x_context=2&x_outlet=118&x_article=1267

Area’s A, B and C are part of the Oslo accords, you clearly don’t have the background knowledge to even formulate an option on these issues. No comment on the Hague convention? Recently confirmed in UNSC 1973, that occupation does not include no flyzones, weapons blockades or closed boarders. Hague defines occupation, Geneva just sets out the obligations, the Hague definition is ALL that matters. Another fail.

Lol propaganda the desperate accusation of a loser. You need your home carer to teach you English comprehension.

Incidentally, I have no interest in formulating "an option on these issues." There is nothing wrong with my English comprehension, though it is clear that you have difficulty in expressing yourself in English.

Wow I made a typo, shock. 4 points and 4 fails idiot.The UNPO is an NGO and stands for Unrepresented Nations and Peoples Organization it’s not related to the United NationsFAIL!A random PDF about Hague article 43 not 42?FAIL!Still playing the Holocaust card with Buergenthal“Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion,”"the Court did not have enough factual evidence upon which to base its conclusion"That’s a real demolition. Read it in full next time and not a quote on some bigot’s blog.http://www.jewishvirtuallibrary.org/jsource/Peace/dissent.html“UN report The Committee on the Exercise of the Inalienable Rights of the Palestinian People”A UNGA kangaroo court, that’s really scraping the bottom of the credibility barrel.What’s next Richard Falk or David Duke.This is your best material ?

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